Default Judgment Set Aside on Showing of Merit, Excuse, and Diligence; and a Comment on Civility

Timothy Kowal, Esq.
April 14, 2021

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000.

When landlord got notice of the default judgment nearly a year later, he moved to set aside the default judgment. The trial court granted landlord's motion, which the Second District Court of Appeal affirmed.

Under Code of Civil Procedure section 473, relief from default or default judgment is available due to "mistake, inadvertence, surprise, or excusable neglect," if sought within six months of the default (not the default judgment). But even outside the six-month period, the court still has inherent authority to set aside on equitable grounds such as extrinsic fraud or extrinsic mistake. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (Kramer).)

“A party seeking relief under the court's equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default. [Citation.]” (Kramer, supra, 56 Cal.App.5th p. 29.)

Landlord-defendant satisfied the test here: The half-million dollar judgment very likely would have been reduced in light of his mitigation efforts; he reasonably assumed his eviction attorney was handling the civil matter; and he moved to set aside within a month of being served with the default judgment (which followed nearly a year after the entry of default, which plaintiffs had not served).

Order setting aside default judgment affirmed.

A Note on Civility, and Apologies:

It is common for an appellant to be tempted to use heated rhetoric on appeal. But here, it was the landlord-respondent's counsel whom the Court needed to take aside for a minor scolding. In a footnote, the Second District stated:

"Respondents’ counsel's opprobrium of appellants—referring to their “sloth and stealth” and their purported “extreme lack of hygiene” among other things—is unnecessary to the resolution of the issues on appeal, and violates the “civility oath” as well as civility guidelines. (See Cal. Rules of Court, rule 9.7 [“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”]; see Cal. Attorney Guidelines of Civility and Professionalism, Introduction (2007), p. 3 <https:/ gov/local-rules/docs/guidelines-civility-professionalism.pdf> as of April 1, 2021, archived at <> [Attorneys’ “obligation to be professional ... includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”].)"

Yet aside from this statement, tucked away in a footnote after resolving the case in favor of the offender's client, the Court took no further action: "We see no need to take further action in light of counsel's apology at oral argument."

In fact, far from sanctioning respondent or his counsel, the Court even still awarded respondent his costs on appeal.

The Lesson: If you've gotten a little carried away, a conspicuous and earnest apology can make up a lot of ground.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.